being environmentally friendly can be a drain on resources
The joys of living in
the country can sometimes become marred by problems with private
drainage. With ever increasing emphasis on the need to
look after the environment and with more resources being made
available to improve regulation, greater numbers of people are
finding it necessary to improve existing private drainage
arrangements.
There are significant numbers of
properties in rural areas that do not have the benefit of a
connection to mains drainage, where a statutory undertaker is
responsible for the maintenance and repair of the 'mains' drainage
system. With 'mains' drainage, homeowners are responsible for the
maintenance and repair of the privately owned section of drain or
sewer connecting the house to the publicly adopted 'mains'. This in
itself can lead to difficulties, especially if the length of the
private drain or sewer is longer than the homeowner realises but
usually mains drainage presents fewer challenges than private
drainage systems.
With a private system, the homeowner
is legally responsible for its maintenance and repair. This can
prove expensive if the system is old and does not comply with
modern regulations. In addition, if pollution is caused, the
responsible person is guilty of a criminal offence. Under the Water
Resources Act 1991, Environment Agency consent is required for any
discharge of sewage effluent into a watercourse, lake or pond and
it may also be required for discharges onto or into land. There are
various forms of private drainage systems and unless it is a
watertight tank, with no outlet save for emptying by the Local
Authority or registered private contractor (a cesspool), there is
high probability that 'consent to discharge' is needed from the
Environment Agency.
There are a great number of private
drainage systems currently in use that do not meet the standards
required by the Environment Agency. Unless an actual pollution
problem is discovered and reported, the need to repair, upgrade and
if necessary completely replace, a private drainage system may not
come to light until the property owner decides to move house.
Whilst this might not have been the case in years gone by, modern
conveyancing procedures mean that a buyer's solicitor will they
obtain advice from their surveyor as to the type of drainage
provided, and this will often lead to a specialist drainage survey
to check the system is functioning properly. Solicitors will want
to raise specific pre-contract enquiries to ascertain that any
necessary consent from the Environment Agency has been obtained. It
is now fairly common for a buyer's solicitor to insist that the
seller produce a copy of the 'consent to discharge' (which would
need to be transferred to the buyer on completion) or a letter from
the Environment Agency confirming that consent is not needed.
Major delays and other difficulties
can arise if there are problems with the private drainage system
and / or the system lacks the necessary 'consent to
discharge'. Sellers can find
themselves having to postpone the sale until the consent to
discharge is obtained; the Environment Agency aims to process
applications within a four month period. Such a delay might
prejudice the seller's related purchase of another property. Not
infrequently, sellers find they have to agree special arrangements
with the buyer for 'a retention'. This is an arrangement whereby
the buyer's solicitor holds back a significant sum of money on
completion of the sale to protect the buyer against the risk of
having to install a new drainage system which could be a costly
exercise. For homeowners in rural areas who have not moved
recently, these 'rules and regulations' can come as a nasty shock -
especially if the private drainage system is substandard. When
planning to sell a property served by a private drainage system, if
there are any concerns over whether the system is functioning
properly and / or whether it might need a 'consent to discharge' it
would be best to plan ahead and take specialist advice sooner
rather than later.
For further information, please
contact Debbie Castle in our Residential
Property team at debbie.castle@bllaw.co.uk
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